Friday, January 29, 2016

Virginia Zaunbrecher at Legal Planet has an interesting post putting the Flint, Michigan lead crisis in historical context, noting, among other things, that lead use in the U.S. has actually gone up during most of the period when blood lead concentrations were dropping. Here's some more comparative background, surprising to me:

Childhood lead poisoning was linked to lead paints in 1904. France, Belgium and Austria banned white-lead paint in 1909. The National Lead Company admitted lead was a poison in 1921. The League of Nations banned white-lead interior paint in 1922 (you know an environmental regulation is old if it was issued by the League of Nations), but the U.S. declined to implement the ban. Instead, the U.S. waited nearly half a century (1971) to pass the Lead Poisoning Prevention Act (42 U.S.C. 4822), although some local jurisdictions started banning it as early as the 1950s. The ban on lead paint was fully implemented in the U.S. 1978, 74 years after childhood lead poisoning was linked to lead paints.

Wednesday, January 27, 2016

A recent discussion on an email list led Michael Gerrard to raise the following idea:

For years to come people will be puzzling about the origins and meaning of many words and phrases in the Paris Agreement and Paris Decision. The large numbers of people who participated in the negotiations are all carrying recollections in their heads and their laptops about how certain language came to be. Wouldn't it be useful, while memories are still fresh and files are not yet erased, if we had a way to capture and organize this? Would it make sense to set up some kind of Wiki system where people could post as comment bubbles, or footnotes, or whatever, their recollections about the negotiations around parts of the agreement? Each comment would need to be accompanied by the name of the commenter (because anonymous commenting can lead to all sorts of mischief) and ideally by some explanation of how the commenter knows what he or she is saying (e.g. was present in such and such a negotiating session), so that later readers can judge the reliability of the information.

It seems to me that this shortly-after-the-fact legislative history of the Paris documents would be extremely useful to lawyers, officials and scholars, and that it is technologically possible (though I don't have the technological prowess myself). Negotiators could be invited to enter their memories on-line themselves. This could also be a project for large numbers of students; negotiators could be interviewed by students, who would go through the documents with them, record the recollections, and enter them as appropriate. Thousands of people participated in the negotiations, but interviews could be divided up and quite a few could be conducted this way. Additionally, several law schools sent to Paris groups of students who took extensive notes on the sessions they observed, so some of this information is already available but it would all need to be organized.

Tuesday, January 26, 2016

Lawrence MacDonnell has posted "Prior Appropriation: A Reassessment". (The doctrine is a central aspect of water law in the western United States, according to which water is allocated to users on a "first in time" basis--for more, see here.) The short abstract explains that the paper "provides an overview of the literature critiquing the Prior Appropriation Doctrine, examines the historical evolution of the doctrine, and offers recommendations for modernizing its major concepts." The introduction explains (footnotes omitted):

Thoughtful observers have declared the law of prior appropriation obsolete, no longer relevant, or even dead. On the other hand, others have declared it the best-suited law yet devised to govern human uses of water, especially in water-limited places. Many writers have criticized at least some aspects of the law of prior appropriation. As further explored below, the criticisms take many forms. Far less has been written about the virtues of prior appropriation despite the tact that principles originated in the mining districts of nineteenth-century California ended up being adopted by seventeen western states.

Leaving aside that MacDonnell counts me upon the supporters of the doctrine (see p. 231), a characterization I'm not sure I agree with, the article is a good survey of much of the literature about the doctrine, pro and con. The following part, in particular, caught my eye (footnotes omitted again):

Elwood Mead was an early critic of the self-initiation form of prior appropriation. In his 1903 classic,Irrigation Institutions, he stated:

"The whole principle is wrong. It is wrong in principle as well as faulty in procedure. It assumes that the establishment of titles to the snows on the mountains and the rains falling on the public land and the water collected in fie lakes and rivers, on the use of which the development of the state in a great measure depends, is a private matter. It ignores public interests in a resource upon which the enduring prosperity of the community must rest. It is like A suing B for control of properly which belongs to C. Many able attorneys hold that these decreed rights will in time be held invalid because when they were established the public, the real owner of the property, did not have its day in court."

Colorado attorney Moses Lasky [right] pointed to the strong bias against administrative decision making in the United States during the era in which prior appropriation developed, the preference (and even necessity) for individual assertion of rights under frontier conditions, and the strong preference among common-law trained lawyers for determination of legal rights by courts in the context of a specific dispute. Because of the widespread adoption of permitting systems by 1928, Lasky concluded that "[t]oday prior-appropriation is the law nowhere in the West."

Mead's prediction didn't exactly come true, but doctrines such as reserved rights have indeed subordinated decreed private rights to public interest. I'm not sure Lasky's characterization of nineteenth-century America as being opposed to administrative decision-making stands the test of time, but his recognition that by the twentieth century the system had become an administrative one is right on.

Sunday, January 24, 2016

Three weeks ago antigovernment gunmen took over Malheur Wildlife Refuge in Oregon, USA, and they have been in a standoff with law enforcement officials since then. The gunmen (from out of state) are demanding that the land be "returned" to the local county. Some background is provided by Alan Feuer in the New York Times, who explains that the gunmen are echoing the claims of the "Wise Use movement":

Wise Use answers the question of who should own the West by granting moral primacy to natural resource companies and to logging and ranching families....

Though composed of many activists and scores of organizations, Wise Use found its voice in the late 1980s when a timber industry adviser named Ron Arnold published “The Wise Use Agenda.” The manifesto offered an expansive plan to gut environmental regulation, increase private ownership of public land and compel the federal government to open its holdings to mining, oil and logging companies and to the unrestricted use of off-road vehicles.

Mr. Arnold adopted the phrase “wise use” from Gifford Pinchot, the first head of the United States Forest Service (who said that “conservation is the wise use of resources”). In 1988 he held a conference, bringing together the likes of Exxon and the National Cattlemen’s Association, with the goal of seeding the West with grass-roots groups that could wrest control of federal land and give a local flavor to his Reaganite aims.

“Arnold sent organizers into distressed rural communities to set up front groups with environmentally friendly sounding names that whipped up hostility against the government,” said Tarso Ramos, the executive director of Political Research Associates, a research group that studies right-wing movements. What resulted, Mr. Ramos said, was a “coalition of natural-resource companies, property developers and conservative activists working with a network of community organizations.”

This coalition achieved success in pushing its agenda. By the early 1990s, politicians friendly to the Wise Use cause had introduced or passed legislation in nearly 30 states giving local governments and citizens expanded powers to lay claim to federal land. Among those politicians was Representative Helen Chenoweth-Hage, an Idaho Republican, who became notorious for mocking the Endangered Species Act by holding what she called “endangered salmon bakes.” There was also Gale A. Norton, the interior secretary under President George W. Bush, who once worked as a lawyer for the Mountain States Legal Foundation, which has billed itself as “the litigation arm of Wise Use.”

Tuesday, January 19, 2016

More than 200 years after the King sold one of the “King’s commons” to urban timber merchants, local people in some ways still behave as if the area is a kind of commons. The paper outlines the history of the transformation of the area from an 18th century King’s commons to a 21st century battleground for ideas about ancient access and use rights of community members facing rights claimed by a commercial forest owner within local consequences of national legislation. The discussion is focused on the right of common to hunt small game without dog in Follafoss private commons. The right was confirmed in a judgement of the Supreme Court in 1937 and in legislation on hunting in 1951. The Government’s proposal for new legislation on hunting in 1981 removed the right without saying a word about it, and it was never commented on in parliament during the legislative process. To explain what we observe it is suggested that a new layer of legislation on rights of common from 1857 and 1863 created a structural amnesia about private commons making it easy to remove them from legislation.

January 17, 1900: Fifteen days after Chicago opened the Sanitary and Ship Canal and reversed the course of the Chicago River to discharge sewage into the Mississippi River, Missouri sued Illinois, “…praying for an injunction against the defendants from draining into Mississippi River the sewage and drainage of said sanitary district by way of the Chicago drainage canal and the channels of Desplaines and Illinois river.”

The Bill of Complaint alleged in part:

“That if such plan is carried out it will cause such sewage matter to flow into Mississippi River past the homes and waterworks systems of the inhabitants of the complainant…

That the amount of such undefecated [huh?] sewage matter would be about 1,500 tons daily, and that it will poison the waters of the Mississippi and render them unfit for domestic use, amounting to a direct and continuing nuisance that will endanger the health and lives and irreparably injure the business interests of inhabitants of the complainant…

That the water of the canal had destroyed the value of the water of the Mississippi for drinking and domestic purposes, and had caused much sickness to persons living along the banks of said river in the State of Missouri.”

The opinion in the case was written by Supreme Court Justice, Oliver Wendell Holmes and read in part:

“The data upon which an increase in the deaths from typhoid fever in St. Louis is alleged are disputed. The elimination of other causes is denied. The experts differ as to the time and distance within which a stream would purify itself. No case of an epidemic caused by infection at so remote a source is brought forward and the cases which are produced are controverted. The plaintiff obviously must be cautious upon this point, for if this suit should succeed many others would follow, and it not improbably would find itself a defendant to a bill by one or more of the States lower down upon the Mississippi. The distance which the sewage has to travel (357 miles) is not open to debate, but the time of transit to he inferred from experiments with floats is estimated at varying from eight to eighteen and a half days, with forty-eight hours more from intake to distribution, and when corrected by observations of bacteria is greatly prolonged by the defendants. The experiments of the defendants’ experts lead them to the opinion that a typhoid bacillus could not survive the journey, while those on the other side maintain that it might live and keep its power for twenty-five days or more, and arrive at St. Louis. Upon the question at issue, whether the new discharge from Chicago hurts St. Louis, there is a categorical contradiction between the experts on the two sides.”

Commentary: In effect, Justice Holmes ruled in favor of Chicago. The experts for St. Louis had failed to prove their case.

Reference: Leighton, Marshall O. 1907. “Pollution of Illinois and Mississippi Rivers by Chicago Sewage: A Digest of the Testimony Taken in the Case of the State of Missouri v. the State of Illinois and the Sanitary District of Chicago.” U.S. Geological Survey, Water Supply and Irrigation Paper No. 194, Series L, Quality of Water, 20, Department of the Interior, Washington, D.C.: U.S. Government Printing Office.

Sunday, January 17, 2016

[Another guest post, with lots of useful references, by Peter Sand of the Institute of International Law, University of Munich (see here for his earlier post on Karl Neumeyer). Revised from Environmental Policy and Law 37:2-3 (2007) 201-203. Notes are after the break.]

“Sustainable development” has become a household word – if a heavily loaded one – to international lawyers, economists and green politicians alike. Yet, the etymology of the term spans a number of other disciplines, and more than three centuries of environmental history.

The Report of the ‘Brundtland Commission’, published in 1987,[1] had borrowed the term from the 1980 IUCN/UNEP/WWF World Conservation Strategy, drafted under the guidance of the then Director-General of IUCN, Dr. David A. Munro (left) – distinguished Canadian forester and wildlife biologist (1923-2004).[2]

Canada’s oldest forest school is the Faculty of Forestry at the University of Toronto. Its founder (in 1907), and first dean until 1919, was a German forester, Bernhard Eduard Fernow (1851-1923) – who from 1886 to 1898 had served as the first chief of the US Division of Forestry (which later became the Forest Service within the Department of Agriculture).[3] Fernow was the architect of the 1891 Forest Reserve Act (part of the General Public Lands Reform Act of 3 March 1891), which laid the ground for ‘creative’ conservation measures on the federal public domain – and it comes as no surprise that he had originally studied law (at the University of Königsberg).[4] His successor as US chief forester was Gifford Pinchot (PhD in forestry, University of Munich 1898; founder of the Yale School of Forestry in 1900, now School of Forestry and Environmental Studies),[5] whose mentor and role-model had been another German forester, Sir Dietrich Brandis.[6] Brandis, after obtaining his PhD in botany at the University of Bonn, had joined the British colonial service in 1856 as ‘superintendent of forests’ in Burma, and from 1864 to 1883 served as first Inspector-General of Forests in India and Pakistan.[7] He was Rudyard Kipling’s legendary “gigantic German, head of the woods and forests of all India, head ranger from Burma to Bombay”.[8] His practices and principles of ‘sustained yield’ forest management – and those of his successors, Sir William [Wilhelm] Schlich (1840-1925, founder of the Royal Indian Forestry College at Cooper’s Hill, since 1905 at Oxford)[9] and Berthold Ribbentrop (1843-1917, Inspector-General of Indian Forests from 1885 to 1900)[10] – had a lasting influence on generations of foresters in North America, Asia, Australia and New Zealand.[11]

The theoretical basis for forest management, including the concept of ‘sustained yield’, had been developed in the 18th and 19th century at specialized forestry academies in Germany, such as Tharandt in Saxony and Münden in Hanover (where both Fernow and Ribbentrop graduated).[12] The pioneering scientific treatise on the subject was the ‘Sylvicultura Oeconomica’ (at top) published in 1713 by Johann [Hannss] Carl von Carlowitz (right, 1645-1714),[13] lawyer and manager of the Duke of Saxony’s silver mines (hence vitally dependent on long-term timber supplies!). It comprised the first formulations of such ‘post-modern’ terms as precaution [Praecaution, Vorsorge] for intergenerational benefits [den Nachkommen zum Besten], by sustained use [nachhaltende Nutzung]; and it was followed by other works now postulating a general policy of sustainable forest economics [nachhaltige Wirtschaft mit unseren Wäldern].[14]

Carlowitz in turn had drawn the inspiration for his innovative policies from multiple sources. After completing his legal studies at the University of Jena, he had taken the customary ‘grand tour’ of Europe in 1665-69, travelling to Italy, the Netherlands, Scandinavia, England and France. A focus of his attention at the time were the administrative reforms undertaken by Louis XIV’s powerful minister of finance, Jean-Baptiste Colbert (1619-1683, right); in particular, the great reorganization of French forestry governance which culminated in the ‘Ordonnance des eaux et forêts’ of 1669.[15]

It must be kept in mind, though, that Colbert’s own concern for the conservation and sustainable use of France’s forest resources had very precise strategic motivations; i.e., the long-term security of timber supplies for the ship-building industry, which was the basis of French naval power.[16] Sure enough, there had been ominous historical warning signals before: The decline of Venetian maritime dominance in the Mediterranean during the 16th and early 17th century was widely attributed to timber shortages in naval construction, caused by deforestation.[17] It was no coincidence, therefore, that another contemporary pilot text which Carlowitz acknowledges among his source references – Sylva: A Discourse of Forest-Trees, and the Propagation of Timber in His Majesty’s Dominions (1664), by John Evelyn (English lawyer and writer, 1620-1706, educated at Oxford’s Balliol College and the Middle Temple, right)[18] – had been compiled and published at the request of the Commissioners of the British Navy. After the Napoleonic Wars, Isaac D’Israeli noted that the fleets of Admiral Nelson had been constructed “with the oaks which the genius of Evelyn planted.”[19] For the same strategic reasons, Russian Tsar Peter I in 1703 had designated the oak forests of Kharkov and Simbirsk as permanent state reserves for ship timber;[20] and in 1817, the US Secretary of the Navy obtained statutory authorization to reserve public oak forest lands for ship-building.[21]

In retrospect, then, the concept of ‘sustainable development’ may indeed be said to have its historical roots in subtle power politics as much as in bona fide intergenerational equity.

Tuesday, January 12, 2016

I think it’s also interesting to examine “conflicts on the ground” as it were between the Left and Green movement parties to the extent the latter finds little or nothing of value in the Marxist tradition (e.g., the early conflicts between the ‘Realos’ and ‘Fundis’ in West Germany and the ‘deep ecologists’ and largely Bookchin-led and inspired ‘social ecologists’ in the US).

Sunday, January 10, 2016

David
Schorr recently invited me to share a few words about my latest video project
with the readers of this blog. The video will be called “Wood, Water, Stone,
Sky, Milk: Law and Landscape in Austria.” It will run about ninety minutes once
it’s complete, but in the meantime I’ve been releasing short draft segments, one of which was cross-posted here a few weeks back.

The
latest segment is called “Alexander and Iris Talk About Stone (without meeting),”
and it explores an Austrian legal method beguilingly named after one of the most
prominent elements of the Austrian landscape:

Both
Alexander and Iris were great
sports, and their enthusiasm for video as a medium enabled this segment to
address a serious subject with a light touch and to reach viewers well outside
university circles. That’s a tone and openness I’d like to achieve throughout
the film.

The
project grows out seven months I spent as a Fulbright Scholar at the University
of Salzburg in 2015, but its roots lie a bit further back. In 2012, I began an
extended, unpaid leave of absence from Rutgers-Newark School of Law, where I
had taught constitutional law and legal history for ten years. The reasons for
the change were personal: my wife is a professor of English
at Wesleyan University, and the burdens of my commute from New Haven came to
outweigh the benefits of an academic career. We value our lives together.

The decision
came with some significant material costs, but it has given me the time and freedom
to strike out in new directions, and that’s been ever-inspiring. I had already
published three books, and
I wanted to jump well outside my comfort zone and explore modes of historical
expression that were entirely new to me. I wanted to engage with radically different
forms and styles of telling stories about the legal past. As it happened, two of
the forms that came to interest me—two new directions I took—were visual.

The
first new direction led me into the world of museum exhibitions. Most
important, I began collaborating with my friend Mike Widener, Rare Book
Librarian at Yale Law School, on an exhibition
for the Grolier Club in New York about
illustrated law books. Called “Law’s Picture Books,” the exhibition will
feature a number of works that are sure to interest readers of this blog, like this
eighteenth-century book about Dutch water law, or this
great edition of Bartolus. Do come join us when the exhibition opens in February
2018—it’s going to be exciting.

The
second new direction led me into the world of video production and editing,
which has become one of the most profound humanistic experiences of my life—it
forced me to wrestle with basic questions about our knowledge of the world.
I’ll find another occasion to reflect on the challenges involved when a
university scholar tries to learn digital video from scratch. But I can say
here that, to my relief, it struck me immediately that the storytelling
foundations of documentary work and my own academic writing were basically the
same. And, happily, after a couple of years of trial-and-error learning, I’ve
become familiar enough with Adobe’s suite of post-production
products—storytelling tools of jaw-dropping power for historians—to create work
that’s significantly better than the first film I made on my Flip Video camera.
Plus, the great thing about being a beginner again is there’s so much
opportunity to learn so much more.

“Wood,
Water, Stone, Sky, Milk”—or, when I’m feeling less ambitious, “Stone, Water,
and Wood”—began as a very different video project. When I put together my
Fulbright proposal, I intended to make a film about the Austrian legal
philosopher Hans Kelsen and his pure theory of law.
This seemed like a project just quixotic enough to be interesting to me. But
after spending a series of afternoons meditating on Kelsen along the banks of
the beautiful Salzach river, it became clear that any filmic treatment of
Kelsen would after all have to be a film.That is, it would require exploring his highly abstract thought in a way
that would be grounded in—indeed, that would proceed from—worldly, visual metaphors.
It also became clear that the project was too narrowly conceived.

Smoke over Des Moines (right), discussed in Parts IV and V of this series, does more than document the contemporary concern over air pollution that served as the background for the mid-twentieth century’s wave of environmental legislation or the failure of early legislation to solve the problem; it also alerts us to the very existence of air pollution regulation in mid-twentieth-century America, penetrating even to a relatively small Midwestern city. The poster is useful on yet another level, disclosing the legal and institutional form—local ordinances and smoke commissions—that the regulation often took in this period, thereby helping the modern historian bridge the conceptual and semantic gap between today’s legal forms and those of the past.

The WPA poster also opens further avenues of inquiry about environmental law circa 1940. We know from other sources that smoke commissioners and inspectors were appointed under a local Des Moines ordinance. Yet it was the St. Louis Smoke Commissioner, not a local official, who was the featured speaker of the advertised event. Historians have noted that the St. Louis Commissioner, Raymond Tucker, was a particularly effective and influential figure in the American anti-smoke movement, and the 1940 St. Louis ordinance that he pushed through and zealously enforced attracted attention outside the city. The poster’s recording of Tucker’s visit to Des Moines, probably in early 1941, might indicate the arteries of legal influence through which environmental norms flowed between jurisdictions during this period, raising questions about whether law traveled as a disembodied printed text or as a companion to flesh-and-blood travelers, and about the possibly limited geographic scope of legal diffusion during this time.
Turning to land use law, Monet’s work is once again suggestive. His 1870 paintings of the beach and boardwalk at Trouville (e.g. The Beach at Trouville, 1870, Wadsworth Atheneum, right, and La Plage à Trouville, 1870, private collection) display an interesting feature—the apparently flush building line and open beach. Beach setbacks are a hot environmental issue today, but a supposedly recent one, as evidenced by historic building right up to the shoreline in many places. Assuming Monet’s depiction of the beach setback is historically accurate—its repetition in at least two paintings suggests it is—why did the owners of the expensive real estate in the trendy Norman resort not take advantage of the full extent of the beach to increase the built areas of their casinos and hotels? Why did they leave the beach open to the public?

The straight building line indicates a measure of coordination, and the owners’ withstanding of the temptation to “defect” and extend their buildings further out toward the sea suggests a degree of legal coercion. What kind of legal norm operated here is a mystery. Was it a French version of the “public trust doctrine”? A local initiative to preserve the tourist-attracting beach, anchored in local ordinance, contract, or servitude? An early law aimed at beach preservation, or perhaps one that sought to prevent storm damage to built structures? In any case, that Monet’s eye was drawn to this feature seems to attest to both its salience and its aesthetic value in the eyes of contemporaries.

Similarly, while Victorian environmental law may not have brought about clean skies, some paintings hint at other effects. Though mandating minimum chimney heights in order to lift pollution away from populated areas (transferring the fallout somewhere downwind) was apparently a product of the twentieth century, earlier paintings suggest that minimum chimney heights were being established already in the nineteenth. The multiple smokestacks in Caillebotte’s Factories at Argenteuil and Pissarro’s Bords de l’Oise à Pontoise (both in Part III of this series), among others, appear to be of uniform height, towering above the squat chimneys in earlier paintings, such as De Loutherbourg’s early nineteenth-century depictions of the iron works at Coalbrookdale, Shropshire (below).

The standardization of heights evident in Caillebotte’s and Pissarro’s paintings from the latter part of the century suggests a legal moment behind the smokestacks’ specifications. Whether the elongated stacks were a uniform response to legislation requiring consumption of smoke, to more specific technical requirements imposed by legislation or licensing procedures such as the enquête de commodo et incommodo, or an attempt to head off nuisance suits by adopting industry-wide best practices needs to be investigated, but their artistic rendering at least opens this avenue of historical inquiry.

These examples suggest that while it may be difficult to discern the precise content of environmental law from artistic sources, these sources can at least alert us to the presence, and sometimes the form, of environmental legal norms, in historical contexts in which we might not have suspected their presence. Art can thus be a tool for understanding not only the preconditions and effects of environmental law, but the law itself.

*****

To sum up this series, I would say that art can provide a valuable set of historical sources for understanding the cultural attitudes toward the environment against which environmental law did or did not develop. It can also help evaluate the effects of environmental law, particularly as these were perceived in history. While its utility for uncovering environmental law itself is probably more limited, we have seen that it can at least suggest lines of historical inquiry into the presence of environmental law and the form it took.